OF JUDGMENT: 09/22/2017
COUNTY CHANCERY COURT TRIAL JUDGE: HON. JANE R. WEATHERSBY
ATTORNEY FOR APPELLANT: KIMBERLY WALKER NAILOR
ATTORNEY FOR APPELLEE: JAMES L. PENLEY JR.
CARLTON, P.J., TINDELL AND McDONALD, JJ.
Joni Warner appeals the chancery court's denial of her
petition for modification of a prior child-custody order, the
denial of her motion to reconsider, and the denial of her
motion for a new trial. Finding no error, we affirm.
Joni Warner and Larry Thomas were never married but are the
parents of the minor child, L.J. On April 4, 2016, when the
child was four and after the parties had ended their
relationship, Warner filed a "Complaint for Order of
Filiation, Support and Custody" against Thomas. At that
time, Warner was living with, and had just had a child by,
her fiancé, Tyrone Harris, a pipeline worker in Texas
who came home infrequently. Thomas was living with his new
girlfriend, and L.J. was in preschool at the time.
After a hearing on January 17, 2017, the trial court found
that prior to ending their relationship and well after L.J.
was born, Thomas spent his off-work hours at Warner's
house until it was time for him to go home in the evening.
They functioned as a family until Warner and Thomas broke up.
Both were working during the week and had stability in their
jobs. L.J. lived with Warner who would get him up for school
and, after school, did homework with him and got him to bed.
When Thomas was with the child, they would play football,
practice L.J.'s letters, play games, and go to movies.
The child had a good and loving relationship with both
parents and was in good physical and mental health. Both
parents had good support systems in place for the care of the
child. After the breakup, the child spent time with Thomas at
his mother's home. Thomas claimed he did not want to be
"an every other weekend father."
In its final decree on January 26, 2017, the trial court
applied the Albright  factors and awarded the parties
joint legal and physical custody of the child. According to
the decree, Thomas was adjudicated as L.J.'s father and
the parties would have alternate weeks of physical custody of
the child. Neither party appealed that decision.
Less than three months later, on April 18, 2017, Warner filed
a Petition for Modification claiming a material change in
circumstances that adversely affected the best interest of
the child. The material change alleged was an April 2, 2017
incident that occurred after one of the minor child's
basketball games. Warner claimed that Thomas attempted to
assault her and ended up assaulting the minor child. She
further pleaded that the municipal court of Vicksburg entered
an "Ex Parte Emergency Domestic Abuse Protective
Order" following this incident and later entered a
Temporary Domestic Abuse Protection Order that prohibited
Thomas from contacting Warner until June 14, 2017. Warner
also pleaded that modification was necessary because L.J.
feared his father. She asked that she be given sole physical
and legal custody of the child. Thomas answered, denying
At the hearing on the Petition for Modification, held on
August 13, 2017, Thomas and Warner testified, as did each of
their mothers and Tyrone Harris (Warner's fiancé).
Warner testified and gave her version of the basketball
incident which occurred on April 2, 2017, at the YMCA.
According to her, the game was over and she had taken L.J. to
the concession stand for a hot dog. She also had her baby by
Tyrone with her. Thomas came over and talked to the child,
telling him that it was a good game, etc. He then looked at
her and said "I can't believe you got this ugly ass
baby with you. You a dumb mother******." Knowing that
things were turning for the worse, she tried to grab
L.J.'s hand to leave; Thomas, however, took the child
with him "behind what's a board," she said,
"[H]e took L.J. behind the board." She then called
her fiancé, Tyrone, to tell him that Thomas would not
give her the child. Thomas hit the phone out of her hand. She
kept trying to get the child back, and finally Thomas grabbed
her hand and tried to hit her. He missed and slapped L.J.
accidentally instead. L.J. began crying, and she went to find
a coach. She then got L.J. back, and as they were leaving,
Thomas tried to trip her.
Thomas, however, gave a different version of events.
According to him, after the game, he saw Warner and L.J. and
said he wanted to talk to L.J. because he had not been able
to see him. L.J. was sitting down, eating his hot dog, and
Thomas told him to come over to him. L.J. had no problem
coming to him. Warner broke into their conversation and said
they were leaving. Thomas grabbed L.J. and said he was not
done talking to the child. Warner said that was too bad,
snatched the child, and left. He denied attempting to strike
Warner and denied hitting the child at all.
Tyrone Harris testified that he was at work when he received
a call from Warner. She was crying and telling him that
Thomas had taken L.J. from her and would not give him back.
He heard Thomas on the phone say, "[B]itch, you'll
get him back when I want you to have him back." And then
the call ended.
Elizabeth Thomas, Thomas's mother, testified that she was
at the YMCA that day but she did not witness the incident.
Someone told her that she needed to go see about Warner and
Thomas because they were arguing. By the time she got to the
area, everything was over, and she only saw Warner and L.J.
walking out. The child appeared to be fine with one hand
holding his mother's hand and the other holding a hot
dog. The child was not crying. She asked Warner what ...